NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIN CUNYI,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent. No. 16

- 73204

Agency No. A208

- 419

- 218

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 16, 2022 * *

Before: SILVERMAN, MILLER, and BUMATAY , Circuit Judges.

Lin Cunyi 1

, a native and citizen of China

, petitions for review of the Board

of Immigration Appeal s’ (“BIA”) order dismissing his appeal from an immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 Although petitioner’s name appears as “ Lin Cunyi ” in the agency decisions and Answering Brief , it appears as “Cun Yi Lin” in the Petition for Review and Opening Brief, and as “ Cunyi Lin ” in the Notice to Appear, credible

fear documentation

, and Form I

- 589

. 

# FILED

MAR 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 16

- 73204

judge’s (“IJ”) decision denying his application for asylum, withholding of removal

,

and relief under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, applying the standards governing adverse credibility determinations

under the REAL ID Act. Shrestha v. Holder , 590 F.3d 1034, 1039

- 40 (9th Cir.

2010). We grant the petition for review and we remand.

The BIA found no clear error in the IJ’s adverse credibility determination

based on two findings that Cunyi’s testimony was inconsistent with his credible

fear interview

. Subst antial evid ence does not support these findings, where the

agency failed to provide any reason for rejecting Cunyi’s explanations for the

perceived inconsistencies

. See Munyuh v. Garland , 11 F.4th 750, 758 (9th Cir.

2021) (“[T]he agency has a duty to consider a petition er ’ s explanation for a

perceived inconsistency

. . . . If that explanation is reasonable and plausible, then

the agency must provide a specific and cogent reason for rejecting it.” (internal

quotation marks and citations omitted)).

In addition, t he BIA did not address Cunyi’s contentions as to the reliability

of the credible fear interview notes. See Sagaydak v. Gonzales , 405 F.3d 1035,

1040 (9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a

petitioner.”).3 16

- 73204

As to CAT

, following the negative credibility de termination as to Cunyi’s

testimony, the agency erred by failing to analyze whether the remainin g non

testimonial record evidence establishe d Cunyi’s eligibility for relief. See Shrestha

,

590 F.3d at 1048 (“ An adverse credibility determination is not necessarily a death

knell to CAT protection.” ).

Thus, we grant the petition for review and we remand Cunyi’ s asylum,

withholding of removal, and CAT claims on an open record to the BIA for further

proceedings consistent with this disposition. See INS v. Ventura , 537 U.S. 12, 16

-

18 (2002) (per curiam); see also Soto

- Olarte v. Holder , 555 F. 3d 1089, 1095

- 96

(9th Cir. 2009)

.

Cunyi’s removal is stayed pending a decision by the BIA.

The parties must bear their own costs on appeal.

PETITION FOR REVIEW GRANTED; REMANDED.